United States District Court, E.D. Missouri, Eastern Division
WATER TECHNOLOGY, LLC and WATER TECH. CORP., Plaintiffs/Counterclaim Defendants,
KOKIDO DEVELOPMENT LIMITED and MENARD, INC., Defendants/Counterclaim Plaintiffs.
G. FLEISSIG, UNITED STATES DISTRICT JUDGE.
matter is before the Court on the parties' cross motions
for the construction of certain patent claim terms, pursuant
to Markman v. Westview Instruments, Inc., 517 U.S.
370 (1996). For the reasons set forth below, the parties'
motions will be granted in part and denied in part.
patent case is about swimming pool vacuum cleaners.
Plaintiffs are Water Technology, LLC and Water Tech. Corp.
(“Water Tech”), maker of the Pool Blaster,
Catfish, Leaf Vac, and Aqua Broom pool vacuums. Defendants
are Kokido Development Limited, maker of Telsa and Vektro
pool vacuums, and retailer Menard, Inc. Water Tech filed a
complaint asserting that Kokido's products, sold by
Menard, infringe five Water Tech patents. Defendants filed a
counterclaim seeking declaratory judgment of non-infringement
and invalidity. Water Tech dismissed its infringement claims
with respect to two patents. The remaining patents in suit
are: (1) U.S. Patent No. 6, 939, 460, titled Portable
Electric Pool Cleaner, issued September 6, 2005 (the
‘460); (2) U.S. Patent No. 7, 636, 975, titled Pool
Vacuum, issued December 29, 2009 (the ‘975); and (3)
U.S. Design Patent No. D556, 396, titled Pool Vacuum, issued
November 27, 2007 (the ‘D396). Patents ‘460 and
‘975 are utility patents for hand-held,
battery-powered, submersible pool cleaners. The ‘D396
is a design patent for a particular ornamental design for a
pool cleaner. Kokido's accused products are also
hand-held, battery-powered submersible pool cleaners.
parties have submitted claim construction briefs and a joint
claim construction chart. On November 28, 2018, the Court
held a hearing at which the parties presented arguments and
Water Tech offered the expert witness testimony of Mr. David
Peterson. As discussed below, Defendants seek construction of
seven claim terms of the ‘460 and six terms of the
‘975. Plaintiffs submit that the Court need only
construe three terms in the ‘460 and two in the
‘975, leaving the rest to their plain meaning.
OF CLAIM CONSTRUCTION
Not Requiring Construction
district court need not construe every claim term challenged
by a party. Finjan, Inc. v. Secure Computing Corp.,
626 F.3d 1197, 1206-07 (Fed. Cir. 2010). Where the plain and
ordinary meaning of the claim term resolves the parties'
dispute, a court properly refuses to employ an alternative
construction. Id. Conversely, “when the
parties present a fundamental dispute regarding the scope of
a claim term, it is the court's duty to resolve
it.” O2 Micro Int'l Ltd. v. Beyond Innovation
Tech. Co., Ltd., 521 F.3d 1351, 1362 (Fed. Cir. 2008).
determination that a claim term ‘needs no
construction' or has the ‘plain and ordinary
meaning' may be inadequate when a term has more than one
‘ordinary' meaning or when reliance on a term's
‘ordinary' meaning does not resolve the
parties' dispute.” Id. at 1361. But, if
giving the language of the term its plain, ordinary meaning
resolves the parties' dispute, a court need not engage in
claim construction merely to accommodate one party's
semantic preference for the use of a particular word or
phrase. See Id. Similarly, a court need not construe
a term where the parties do not present a “fundamental
dispute” with respect to the meaning of the term, but
instead propose the use of different language to achieve
greater clarity or precision. Id. at 1362.
Guiding the Construction of Claims
construction is of primary importance in any patent
litigation as it “defines the scope of the property
right being enforced, and is often the difference between
infringement and non-infringement . . . .”
Retractable Techs., Inc. v. Becton, Dickinson &
Co., 659 F.3d 1369, 1370 (Fed. Cir. 2011). As a matter
of law, the court is charged with the responsibility for
claim construction. Absolute Software, Inc. v. Stealth
Signal, Inc., 659 F.3d 1121, 1129 (Fed. Cir. 2011);
Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576,
1582 (Fed. Cir. 1996).
starting point for any claim construction is the language of
the claim. Phillips v. AWH Corp., 415 F.3d 1303,
1312 (Fed. Cir. 2005) (en banc). Wherever possible, claim
terms are given their plain and ordinary meaning as they
would have been understood by one of ordinary skill in the
art at the time that the patent issued. Id. at
1312-13. In addition, claims are construed “in the
context of the entire patent, including the
specification.” Retractable Techs, Inc., 659
F.3d at 1371.
specification informs the plain and ordinary meaning of the
term. Id.; see also Typhoon Touch Techs., Inc.
v. Dell, Inc., 659 F.3d 1376, 1381 (Fed. Cir. 2011);
Renishaw PLC v. Marposs Societa' per Azioni, 158
F.3d 1243, 1250 (Fed. Cir. 1998) (“Ultimately, the
interpretation to be given a term can only be determined and
confirmed with a full understanding of what the inventors
actually invented and intended to envelop with the
claim.”). However, the specification cannot be used to
deviate from or to narrow the plain and ordinary meaning of a
claim term “unless the inventor acted as his own
lexicographer” and clearly set forth a definition of
the disputed claim term or “intentionally disclaimed or
disavowed claim scope.” Retractable Techs,
Inc., 659 F.3d at 1371; see also Thorner v. Sony
Company Entertainment America LLC, 669 F.3d 1362, 1366
(Fed. Cir. 2012) (Courts may not “read limitations from
the specification into claims; [and] do not redefine words.
Only the patentee can do that.”); Teleflex, Inc. v.
Ficosa N. Am. Corp., 299 F.3d 1313, 1327 (Fed. Cir.
2002) (“Claim terms take on their ordinary and
accustomed meanings unless the patentee demonstrated an
intent to deviate ... by redefining the term” [or by
using in the specification] “expressions of manifest
exclusion or restriction, representing a clear disavowal of
claim scope.”). Thus, the “longstanding
difficulty is the contrasting nature of the axioms that (a) a
claim must be read in view of the specification and (b) a
court may not read a limitation into a claim from the
specification.” Innova/Pure Water, Inc. v. Safari
Water Filtration Sys., Inc., 381 F.3d 1111, 1117 (Fed.
Cir. 2004); see also Home Diagnostics, Inc. v. LifeScan,
Inc., 381 F.3d 1352, 1358 (Fed. Cir. 2004)
(“Absent a clear disavowal or contrary definition in
the specification or the prosecution history, the patentee is
entitled to the full scope of its claim language.”).
“[T]here is a fine line between reading a claim in
light of the written description and reading a
limitation into the claim from the written
description.” Howmedica Osteonics Corp. v. Zimmer,
Inc., 822 F.3d 1312, 1321 (Fed. Cir. 2016). (emphasis
words of a claim receive the meaning discernible by a person
of ordinary skill in the art who has read the entire patent,
including the specification, at the time of the
invention.” SEB S.A. v. Montgomery Ward & Co.,
Inc., 594 F.3d 1360, 1368 (Fed. Cir. 2010). The
“circumstances in which the written description causes
one of skill in the art to reject the plain meaning of a term
are quite narrow.” Retractable Techs, Inc.,
659 F.3d at 1371. If the inventor uses a “broad claim
term that is not supported by his specification, ” a
court may not “redefine a claim term to match [its
understanding] of the scope of the invention as disclosed in
the specification.” Id. An inventor's use
of a broad claim term unsupported by the specification may
call the validity of the patent into question, but the
specification only narrows and never enlarges the meaning of
a term. Id.; see also Computer Docking Station
Corp. v. Dell, Inc., 519 F.3d 1366, 1373 (Fed. Cir.
2008) (stating that “the words of the claims define the
scope of the patented invention”); Phillips,
415 F.3d. at 1316.
construing a term, courts first consider sources of intrinsic
evidence, such as the claim language, the specification, and,
where in evidence, the prosecution history. Id. at
1317. Intrinsic evidence is the most significant source for
determining the “legally operative meaning of disputed
claim language.” Vitronics Corp., 90 F.3d at
after consideration of the intrinsic evidence, the meaning of
a term remains ambiguous, a court may consider sources of
extrinsic evidence, including dictionaries, treatises, and
expert and inventor testimony. Phillips, 415 F.3d.
at 1317-18. Although extrinsic evidence may prove useful in
some cases, it is, for a variety of reasons, generally less
persuasive than intrinsic evidence. Id. at 1318.
preliminary matter, the parties disagree about the requisite
qualifications of a person having ordinary skill in the art
(PHOSITA). Kokido contends that a PHOSITA is someone
qualified in the field of vacuums generally and hand-held
vacuums in particular. Kokido's expert, Adam Carr, has a
bachelor's degree in industrial design, an MBA in design
and innovation management, and 20 years' experience in
industrial design, including many dry vacuum design patents.
Tech asserts that a PHOSITA must be qualified in the field of
water-submersible vacuums, specifically, due to the
unique challenges of water-proofing (of electronic elements)
and fluid dynamics (for maneuverability). Water Tech's
expert, David Peterson, has a bachelor's degree in civil
engineering and additional education and training in
engineering management and watershape construction. He is a
licensed engineer with approximately 20 years' experience
in watershaping, including several patents related to pools
and pool cleaning devices. Kokido responds that this case
involves only the form of the products and not their
function, so water expertise is unnecessary.
interrogatory answers, Water Tech described the
qualifications of a PHOSITA as follows:
The level of ordinary skill in the art is at least a
bachelor's degree in either mechanical or electrical
engineering and at least 3-5 years of experience in the
research, design and commercialization of products in the
field of art, or alternatively less formal education and at
least 5-10 years of experience in the research, design and
commercialization of products in the field of art.
(ECF No. 88-7, p. 21)
there may be aspects especially of the ‘975 patent that
address hydrodynamics, none of the claim terms at issue here
require such expertise. The Court believes that an engineer
or other professional with training or experience in
hand-held vacuums would appreciate the similarities and
differences between air and water vacuums in a manner
sufficient to comprehend the patents. Therefore, with respect
to the claim construction issues presented here, the Court
finds that a PHOSITA need not possess particularized
specialization with respect to water-submersible devices. Mr.
Carr's experience with hand-held vacuums suffices. In any
case, the Court relies little on either expert's
testimony for purposes of claim construction. Water Tech
remains free to challenge Mr. Carr's credibility in
future proceedings if it becomes relevant.
OF DISPUTED CLAIMS THE
‘460 Patent, Claim 1
of the ‘460 Patent claims (with disputed terms in
1. A pool cleaning kit comprising:
a hand-held submersible electrically-powered pool cleaner
a toroidal body having:
a carrying handle for carrying, manipulating, and directing
the cleaner during use, with the carrying handle
being integrally formed from an upper portion of the toroidal
body and an opening through the toroidal body;
a rechargeable power source;
an impeller and drive motor powered by the rechargeable power
wherein the toroidal body has an intake
opening in fluid communication with the nozzle; and
wherein the impeller draws pool water through the
nozzle and filter to remove dirt and debris
from the pool water; and
a charging device for charging the rechargeable power source.
parties request construction of the following
“nozzle” is referenced throughout the patent but
is not precisely described or identified by number in the
specification. The abstract explains that the pool cleaner
has an “intake nozzle for suctioning pool water,
” a handle “for manipulating the nozzle over the
surface of a pool, ” and a filter housing
“disposed between the nozzle and the body.” Col.
1:38-45. The patent does, however, identify a nozzle
attachment (36) similar to vacuum hose attachments, a tubular
member (44) to which such attachments fit, and a nozzle pivot
interface (42), which allows the nozzle attachments to
angulate. The tubular member is identified as 44 in Figure 3,
illustrating the “nozzle end of the pool cleaner,
” and as 44 and 58 in Figure 4, illustrating a nozzle
Tech asserts that “nozzle” should be construed as
“a piece used to direct a flow or
fluid.” Kokido proposes “a short
tube protruding from the pool cleaner used to direct a flow
of fluid.” Water Tech objects to Kokido's
construction insofar as the patent does not specify length,
require protrusion, or reference a tube. The Court agrees
that the patent does not invite inferences of length or
protrusion. While these limitations appear to be part of the
preferred embodiment and are illustrated by the figures, they
are not suggested by the claim language itself or the
description. As such, there is no basis for importing these
limitations into this term. See Arlington Indus., Inc. v.
Bridgeport Fittings, Inc., 345 F.3d 1318, 1327 (Fed.
Cir. 2003) (declining to restrict the meaning of a claim term
based on the description).
though the patent does not require any particular shape of
nozzle attachment, the figures depict a nozzle end that is
tubular and, throughout the specification, both the nozzle
end and the nozzle attachments include a tubular member. For
The nozzle pivot interface 42 includes a
tubular member 44 to which a particular
selected nozzle attachment 36 is removably
secured ... . In one embodiment, the nozzle pivot interface
42 has a predetermined width for attachment
to standard, commercially available nozzle attachments such
as components with widths of about one inch (about 2.5 cm).
nothing but a tubular nozzle is described or illustrated in
either the description or any of the embodiments discussed in
the patent. The Court therefore finds that the nozzle is
tubular. See Howmedica, 822 F.3d at 1321 (noting
that “every description and every figure in the patent
that discusses the issue” compelled the same
construction). Though the Court need not rely on the
extrinsic evidence to reach this conclusion, the Court also
notes that both parties' dictionary definitions refer to
a tube.Thus, the Court concludes that
“nozzle” shall be defined as
“a tube directing a flow of
Tech asserts that “body” needs no construction
and should be given its plain and ordinary meaning. Kokido
proposes: “the main outer casing of the pool
intrinsic evidence belies Kokido's narrow interpretation.
The specification reflects that “body” (16)
refers to the rear section of the device as a whole.
Abstract: The body has a filter, and impeller and motor,
rechargeable batteries, and a handle for carrying the body
and for maneuvering the nozzle along the surface being
Summary: The body houses a filter, an impeller attached to an
electric motor, and includes a handle for carrying the
body.” A filter housing disposed between the nozzle and
the body accumulates the filtered debris.” Col.
The body 16 includes hollow sections 18 … which fill
with water during immersion so the pool clearner 10 is not
buoyant after fall [sic] immersion. Col. 2:56-59.
A pole attachment member 20 extends from the body 16 allowing
the extended pole 12 to be securely but removably attached to
the pool cleaner 10 … . Col. 2:63-65.
most compelling, Figures 8 and 9 represent
"cross-sectional view[s] of the body of the pool
cleaner" and illustrate the entire rear section of the
device, including its internal components. Figure 9 is most
Kokido's construction of "body" as meaning only
the outer casing simply does not comport with the intrinsic
evidence. "The words of a claim receive the meaning
discernible by a person of ordinary skill in the art who has
read the entire patent, including the specification, at the
time of the invention." SEB S.A., 594 F.3d at
1368. The Court finds that, after reading the entire patent,
a PHOSITA would understand "body" without the need
for further construction. The Court rejects Kokido's
narrow definition and declines to construe "body"
away from its plain and ordinary meaning.
parties agree that a toroid is a three-dimensional shape
formed by rotating a two-dimensional shape about an axis. For
example, a two-dimensional letter "O" (a circle)
rotated about an axis forms a three-dimensional donut, i.e.,
a toroid. A two-dimensional rectangle rotated about its axis
forms a cylinder. Kokido asserts that “toroidal”
is simply the adjective form of toroid and thus should be
construed to mean a complete and symmetrical toroid. Kokido
therefore proposes the construction: “a body
that is shaped like a toroid and 360°
symmetrical.” Water Tech asserts that
“toroidal” is broader and does not imply a
perfect toroid; in fact, the patent figures preclude such a
construction. Water Tech proposes: “a body
having a shape generally related to a toroid.”
intrinsic evidence suggests a broad construction. Terms in a
patent document are construed with the meaning with which
they are presented in the patent document. Phillips,
415 F.3d at 1316. “The context in which a term is used
in the asserted claim can be highly instructive.”
Id. at 1314. Here, the context of Claim 1 instructs
that an opening in ...